Your Right to Remain Silent in Massachusetts

The right to remain silent is the right not to be compelled to give evidence against yourself. In Massachusetts it comes from two sources: the Fifth Amendment to the United States Constitution, which provides that no person shall be compelled in any criminal case to be a witness against himself, and Article 12 of the Massachusetts Declaration of Rights, which provides that no person shall be compelled to “accuse or furnish evidence against himself.” The Supreme Judicial Court has held that Article 12 gives broader protection than the Fifth Amendment in several settings that decide real cases.

The right does not work the same way in every setting. What it protects at a roadside stop is not what it protects in a police station, and what it protects in a criminal trial is not what it protects at a restraining order hearing across the hall. This page explains when the right applies, how a person invokes it, what a court may and may not do with a decision to stay silent, and where the answer changes depending on which proceeding you are in.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and litigates the admissibility of statements in the District Court, the Boston Municipal Court, and the Superior Court.

The Two Constitutional Sources

The Fifth Amendment and Article 12 both protect against compelled self-incrimination, and they are raised together. Where the Supreme Judicial Court has read Article 12 more broadly than the Fifth Amendment, the state ground must be raised expressly in the trial court to preserve it for appeal. The differences are set out in the sections below on prearrest silence, the evidence derived from an unwarned statement, an attorney’s call to the police station, juveniles, and device passcodes.

Having the Right and Receiving Miranda Warnings

The privilege exists whether or not anyone recites it. Miranda v. Arizona, 384 U.S. 436 (1966), did not create the right. It required that a person in custody be warned of the right before the police question that person, so that a later waiver can be shown to have been knowing and voluntary.

Two consequences follow, and they run in opposite directions. A statement taken during custodial interrogation without the warnings is subject to suppression, but it is not automatically inadmissible in every use, and suppression does not follow simply because an officer failed to recite a warning in a setting where none was required. Conversely, a statement made when a person is not in custody generally requires no warnings at all, and it comes into evidence in full. The great majority of damaging statements in Massachusetts cases are made in that second category, in ordinary conversation at the roadside or the doorstep, before any arrest.

Custody and Interrogation

Miranda warnings are required only where both custody and interrogation are present.

Custody does not require a formal arrest. It exists where a reasonable person in the suspect’s position would not have felt free to leave, which can include questioning in the back of a cruiser or at a station house before anyone says the words “you are under arrest.”

Interrogation means express questioning or its functional equivalent, meaning words or conduct that the police should know are reasonably likely to produce an incriminating response. A spontaneous statement that no one asked for is not the product of interrogation.

Two narrow categories fall outside the requirement. Routine booking questions, such as name, address, and date of birth, asked to process an arrest are generally exempt. Pennsylvania v. Muniz, 496 U.S. 582 (1990). Where officers face an immediate threat to public safety, they may ask a limited question, such as the location of a weapon, before warning the suspect. New York v. Quarles, 467 U.S. 649 (1984). Both categories are narrow, and questioning that goes past booking logistics or a genuine emergency is interrogation.

Questions about immigration or citizenship status carry a separate limit. Under new M.G.L. c. 147, § 64, a Massachusetts officer may ask about status only with an articulable, case-specific reason to believe it is directly material to an element of a specific offense, and the statute states that status is not directly material to credibility or general information gathering. A person should not answer status questions or give false information; the right to remain silent applies.

Voluntary and Noncustodial Conversations With Police

A person who is not in custody may decline to speak with the police. At a motor vehicle stop a driver must produce a license and registration, and in some encounters a person must give a name. Producing those documents waives nothing. Every question beyond identification is investigative, and no one is required to answer it.

The statements that do the most damage in operating under the influence cases are given at the roadside before any arrest, in answer to questions about where the driver has been and what the driver has had to drink. Those answers are admissible at trial and none of them was required. What the police may and may not do at the stop itself is covered at Massachusetts traffic stops, exit orders, and pretext searches.

Invoking the Right

During police questioning the right must be asserted clearly. Under Berghuis v. Thompkins, 560 U.S. 370 (2010), a suspect who wishes to rely on the privilege must invoke it unambiguously, and sitting silent through an interrogation is not by itself an invocation.

A person may say plainly that they are invoking the right to remain silent and want to speak with a lawyer before answering questions, and then stop answering investigative questions. There is no need to explain the decision, and each further sentence about the case creates the risk that a court will treat the invocation as abandoned.

Silence and Counsel Are Different Invocations

Invoking silence and invoking counsel produce different rules.

When a person in custody invokes the right to remain silent, the invocation must be scrupulously honored. Questioning must stop immediately. The police are not permanently barred from approaching that person again, but renewed custodial interrogation is permissible only after a significant interval, fresh Miranda warnings, and a shift to an unrelated offense. Commonwealth v. Taylor, 374 Mass. 426 (1978); Commonwealth v. Smith, 473 Mass. 798 (2016).

Whether the invocation was clear enough to trigger that obligation is decided on the totality of the circumstances, and the question is whether the person clearly and unequivocally expressed an unwillingness to continue. Commonwealth v. Leahy, 445 Mass. 481 (2005). A request for time to think is not necessarily an invocation, and the surrounding circumstances decide it. Statements such as a flat refusal to talk further are treated differently.

Continued efforts to persuade the person to speak, a brief interruption rather than a meaningful break, and renewed questioning about the same offense all weigh heavily against a finding that the invocation was scrupulously honored. Commonwealth v. Howard, 469 Mass. 721 (2014).

When a person in custody clearly requests a lawyer, the rule is stricter. All interrogation must cease and may not resume until counsel has been made available, unless the suspect reinitiates the conversation. Edwards v. Arizona, 451 U.S. 477 (1981). The obligation that follows a request for counsel is distinct from, and more demanding than, the obligation that follows an invocation of silence. Commonwealth v. Lopes, 455 Mass. 147 (2009). This is why the request for counsel should be explicit and why nothing should be said after it.

Voluntariness as a Separate Question

Even a warned statement is inadmissible if it was not voluntary. Massachusetts follows the humane practice rule: once voluntariness is genuinely at issue, the Commonwealth must prove beyond a reasonable doubt that the statement was voluntary, and the jury is instructed to disregard the statement unless it also finds voluntariness beyond a reasonable doubt. Commonwealth v. Tavares, 385 Mass. 140 (1982). The federal standard is a preponderance of the evidence.

Age, intelligence, intoxication, mental impairment, and prior experience with the police all bear on the question. Massachusetts adds a further safeguard. Under Commonwealth v. DiGiambattista, 442 Mass. 423 (2004), where the Commonwealth offers a statement from a custodial interrogation that was not recorded, the defendant is entitled on request to a jury instruction that the Supreme Judicial Court prefers such interrogations to be recorded and that the jury should weigh an unrecorded statement with particular care.

Prearrest Silence

Federal law permits a defendant’s prearrest silence to be used against that defendant in some circumstances. Jenkins v. Anderson, 447 U.S. 231 (1980). Massachusetts does not follow that rule. A person who has not been arrested has no duty to come forward, and prearrest silence may not be used as evidence of guilt or to impeach that person’s testimony. Commonwealth v. Nickerson, 386 Mass. 54 (1982). The Appeals Court applied the principle in Commonwealth v. Irwin, 72 Mass. App. Ct. 643 (2008), where use of a defendant’s prearrest silence as consciousness of guilt required a new trial.

Evidence Derived From an Unwarned Statement

Federal law permits the government in some situations to use physical evidence discovered as a result of an unwarned but voluntary statement. Under Commonwealth v. Martin, 444 Mass. 213 (2005), Article 12 requires the exclusion of the physical evidence derived from a statement obtained in violation of Miranda. An unwarned statement can therefore require the suppression of the weapon or the drugs the statement led officers to, and not merely the words.

An Attorney’s Call to the Police Station

Massachusetts imposes a duty on the police that federal law does not. Under Commonwealth v. Mavredakis, 430 Mass. 848 (2000), where an attorney contacts the police station and asks to reach a suspect being held, the police must promptly inform the suspect of the call. A waiver of the right to counsel that follows a failure to deliver that message is not knowing and voluntary, and the resulting statement may be suppressed. A family member’s first step after an arrest should be to call a defense lawyer, because the lawyer’s call to the station is itself a legal event.

Juveniles and the Interested Adult Rule

Massachusetts protects young people more than the federal Constitution requires. Under Commonwealth v. A Juvenile, 389 Mass. 128 (1983), a juvenile who has turned fourteen must be given a genuine opportunity for a meaningful consultation with a parent, an interested adult, or an attorney before a waiver is valid. For a juvenile under fourteen, no waiver is valid unless an interested adult was present and consulted. The interested adult must understand the warnings and must not have an interest in the case that conflicts with the child’s.

The rule now covers every youth under eighteen. For interrogations conducted on or after April 9, 2015, it applies to seventeen year olds as well, and the Commonwealth carries the heightened burden of establishing a knowing and intelligent waiver under the juvenile framework. Commonwealth v. Smith, 471 Mass. 161 (2015). The extension rests on the Supreme Judicial Court’s supervisory authority and does not apply to an interrogation that preceded that date, so the date of questioning matters.

Statements to People Who Are Not the Police

The privilege restrains compulsion by the government. It does not make every conversation private.

Statements to an employer, a school administrator, a licensing board investigator, a coworker, or a family member are ordinarily admissible against the person who made them, and the people who heard them can be summoned as witnesses. Recorded jail calls are reviewed by the Commonwealth as a matter of routine, and an apologetic or explanatory call can supply evidence a case was otherwise missing. In a domestic violence case, contact with the complaining witness can produce a separate charge for intimidation of a witness.

A student who explains matters to a dean in order to protect a housing assignment may hand the district attorney a recorded account, because a university disciplinary or Title IX proceeding applies its own standard of evidence and its own rules about what a respondent’s silence means. The two proceedings are coordinated so that protecting one does not damage the other. See college and university student criminal defense.

Testimony in a Related Civil Proceeding

This is where the rule changes, and the change is the most misunderstood part of the subject.

In the criminal case, no adverse inference may be drawn from a defendant’s decision not to testify. Griffin v. California, 380 U.S. 609 (1965). The judge instructs the jury that the decision means nothing, and a prosecutor’s comment on it is improper.

A hearing on a c. 209A abuse prevention order or a c. 258E harassment prevention order is a civil proceeding, and the rule there is different. In a civil case the factfinder may draw an adverse inference against a party who invokes the privilege and declines to testify. Baxter v. Palmigiano, 425 U.S. 308 (1976). Massachusetts applies that rule to abuse prevention proceedings: a judge may consider a defendant’s refusal to testify as evidence adverse to that defendant, and may do so while the criminal case is still pending. Frizado v. Frizado, 420 Mass. 592, 596 (1995); Mass. G. Evid. § 525. The inference alone cannot carry the plaintiff’s burden.

Three positions must be kept separate. A criminal defendant does not testify and nothing follows from it. A party to a civil case invokes the privilege and the judge may weigh that against the party. A witness who is not a party invokes the privilege question by question, and the inference rules that apply to a party do not apply in the same way to that witness.

The practical difficulty is timing. The extension hearing on a 209A order is frequently held on the same day and in the same courthouse as the criminal arraignment, before defense counsel has the police report, the recording of the call to the police, or the plaintiff’s affidavit. Testifying at that hearing places sworn testimony on the record that the prosecutor may use in the criminal case. Declining to testify may result in an order that removes a person from their home, separates them from their children, requires surrender of firearms and any license to carry, and appears in the statewide registry that courts and police consult.

There is no answer that costs nothing. The decision is made with counsel looking at both proceedings together. The problem is treated in detail at testifying at a 209A hearing while the criminal case is pending, and the civil order itself is explained at Massachusetts 209A abuse prevention orders and on the domestic violence defense page.

The Decision Not to Testify at the Criminal Trial

A defendant cannot be compelled to take the stand. The choice belongs to the defendant, made with counsel, and the jury is instructed that no inference may be drawn from it. Griffin v. California, 380 U.S. 609 (1965). The decision turns on the strength of the Commonwealth’s evidence and the risk of cross-examination, including the risk that testifying will open the door to prior statements that were otherwise excluded. It is not made out of a sense that an innocent person ought to explain matters.

A witness before a grand jury occupies a different position and may invoke the privilege question by question. A person who receives a grand jury subpoena or is told they are a target should not appear without counsel, because grand jury testimony is given under oath, defense counsel may not participate in the proceeding, and the account given there can later be used to impeach or to charge.

Passcodes, Biometrics, and Digital Evidence

The privilege protects testimonial evidence, meaning communications that reveal the contents of a person’s mind. It does not protect physical or real evidence. A person may be required to appear in a lineup or to provide fingerprints, a blood sample, a handwriting exemplar, or a voice exemplar. Commonwealth v. Brennan, 386 Mass. 772 (1982); Commonwealth v. Gelfgatt, 468 Mass. 512 (2014).

Entering or disclosing a passcode is different, because it draws on the contents of the mind and is testimonial. Under Commonwealth v. Gelfgatt, 468 Mass. 512 (2014), and Commonwealth v. Jones, 481 Mass. 540 (2019), before a court may order a person to enter a password, the Commonwealth must prove beyond a reasonable doubt that the person knows it. An officer’s request in the field is not a court order.

Unlocking a device by fingerprint or facial recognition has often been analyzed as a physical act rather than a testimonial one, which is a practical reason to know which method secures a given device. What the police may search once they have a device is a separate question, addressed at phone and computer searches in Massachusetts. Whether the messages and extraction reports can then be shown to a jury is a third question, addressed at digital evidence in Massachusetts criminal cases and in the text message and phone evidence questions and answers.

Suppression of a Statement

The remedy for a statement taken in violation of these rules is suppression, not dismissal. A judge who allows a motion to suppress orders that the Commonwealth may not use the statement. The charge remains, and the case continues on whatever admissible evidence is left.

That distinction matters when a person is deciding what to do next. Suppression can end a prosecution where the statement was the case, and it can change the negotiating posture entirely where the statement was central. It does not by itself produce a dismissal. The related question of evidence seized through an unlawful stop or search is treated at illegal searches and seizures in Massachusetts, and the stages of the case are set out at Massachusetts criminal process and arraignment in Massachusetts.

General Guidance

This is general information about how the right works. It is not advice about any particular case, and the right course depends on facts a lawyer needs to hear.

• A person who is stopped or questioned may say that they are invoking the right to remain silent and want to speak with a lawyer, and then stop answering investigative questions.
• Producing a license and registration, or identifying oneself where the law requires it, is not a waiver.
• Declining to give a passcode in the field carries no penalty, because an officer’s request is not a court order.
• Statements to people who are not police officers are generally admissible, and jail calls are recorded.
• In a domestic violence case, contact with the complaining witness can create a new charge.
• Where a criminal case and a 209A or 258E hearing are pending at the same time, the decision whether to testify at the civil hearing is made with counsel who is looking at both.

Motions to Suppress Statements in the Massachusetts Courts

Motions to suppress statements are heard in the District Court, the Boston Municipal Court, or the Superior Court in which the case is pending. Serpa Law Office files and argues these motions throughout Greater Boston, including the Quincy, Dedham, Cambridge, Somerville, and Woburn District Courts and the Boston Municipal Court.

The strength of the motion depends on what happened in the first minutes of the encounter: where the questioning occurred, what was said before any warning, whether an attorney called the station, and, for a young client, whether an interested adult was ever involved. Reconstructing that sequence early is what makes the motion possible.

If you have been questioned or arrested, stop discussing the case and call a lawyer. Call Serpa Law Office at 617.936.0201 for a free and confidential consultation. Boston office: 20 Park Plaza #400A. Braintree Office: 25 Braintree Hill Office Park Suite 200A.

Chapter 163 and Noncitizen Defendants

Chapter 163 of the Acts of 2026 added five rules that matter to a noncitizen deciding whether to answer questions, and two of them govern what may be asked and what may be declined.

1. Questions about status. M.G.L. c. 147, § 64 provides that immigration or citizenship status is directly material only when it is necessary to establish an element of a Massachusetts criminal offense. Status is not directly material to credibility, to cooperation, or to general information gathering.
2. Notice of counsel at intake. M.G.L. c. 127, § 87B requires state and county correctional facilities, houses of correction, and prerelease centers holding detained people to give each person written notice at intake, in that person’s primary language, of the right to counsel and the right to decline interviews by state or federal law enforcement and consular officials. Courthouses are excluded.
3. Civil arrests at the courthouse. M.G.L. c. 221D prohibits a civil arrest inside a Massachusetts courtroom. Anywhere else in the courthouse or on its grounds, an officer may make one only after showing a judicial warrant or order to a judge sitting in that courthouse for prompt review. An ICE administrative warrant, removal warrant, notice to appear, or civil detainer is not a judicial warrant.
4. A final order of removal at bail. M.G.L. c. 276, § 58 allows a judge to consider a final removal order, meaning a final order of deportation, as a factor in assessing risk of flight when setting bail. Every statutory condition must be met first, including that the alleged acts involve a felony under Massachusetts law. Immigration status alone, a detainer, or a pending immigration case does not satisfy that language.
5. T and U visa certifications. M.G.L. c. 258F requires a Massachusetts district attorney’s office, police department, or other certifying entity to decide a crime victim’s certification request within 45 days, or within 14 business days when the applicant is in removal proceedings or faces an immigration hearing or an aging-out beneficiary within 45 days. The entity cannot require that charges were filed or that anyone was convicted.